Slapper Shoes Industries v Joseph Okwayo Ombaisi
The bottom line
#A Kenyan court refused to excuse a company's 14-month delay in challenging a taxed legal bill, blaming counsel alone is not enough.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Applicant has made out a case for the enlargement of time within which to challenge the decision of the Taxing Officer delivered on 29th August 2024
- 2.The fate of the remaining prayers of the application
- 3.Who should bear the costs of the application
Key legal issues
#Whether the fourteen-month delay in seeking leave to file a reference out of time was satisfactorily explained
The delay was inordinate and unexplained; the assertion of ignorance of the taxation was rebutted by uncontroverted evidence of service and by the Taxing Officer's record that the Applicant's counsel attended the ruling
The Respondent's replying affidavit, corroborated by affidavits of service, emails and the Taxing Officer's ruling recording 'Mr Omollo present for the Respondent', stood uncontroverted after the Applicant was granted and declined an opportunity to file a further affidavit. The burden under sections 107-109 of the Evidence Act and the Salat principles was not discharged; submissions cannot substitute for evidence.
Whether the mistake of erstwhile counsel excuses the delay
The principle that counsel's mistake should not be visited on a litigant is not a talisman; it requires proof of the mistake and of the litigant's own diligence
The Applicant offered no evidence from or correspondence with its erstwhile advocates, and remained silent for over two years on the costs it knew from November 2022 it was liable to pay. Following Habo Agencies, a litigant must follow up its own cause; indolence cannot be excused by bare blame of counsel.
The consequence of failure to file a further affidavit after leave was granted
Unanswered averments stand unrebutted and the Court may draw the inference that the party had no answer
Having sought and obtained leave to reply to the replying affidavit that struck at the root of the application, the Applicant filed nothing. The Respondent's depositions, corroborated by contemporaneous documents, were accepted as establishing the facts deposed to, and an inference of want of answer was drawn.
Whether the complaint about inclusion of the paid decretal sum in the warrants lies within a reference
A complaint about execution, not taxation, falls outside the scope of a Rule 11 reference; the Court made no pronouncement on it
The reference jurisdiction under Rule 11 is confined to objections to items of taxation. The grievance that the warrants of 26th September 2025 included the decretal sum of Kshs. 161,120/= and interest despite payment on 6th December 2022 is a complaint about execution, on which the Court expressed no view.
Legal principles established
#- Leave to file a reference out of time is a discretionary equitable remedy; the applicant bears the burden of explaining the delay to the Court's satisfaction
- Service upon an advocate on record is service upon the client, and the advocate's knowledge is the client's knowledge
- Uncontroverted sworn averments supported by documents must be acted upon unless inherently improbable
- Blaming counsel avails a litigant only where the mistake is proved and the litigant was diligent; a case belongs to the litigant
Court orders
#- 1.The Applicant's Chamber Summons dated 7th November 2025 is dismissed
- 2.Leave to file a reference out of time against the Taxing Officer's decision of 29th August 2024 is declined
- 3.Prayers for stay of execution and for remission of the bill of costs for fresh taxation are refused
- 4.Any interim orders of stay of execution issued are discharged
- 5.Costs of the application awarded to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Rule 11(2) and (4) of the Advocates (Remuneration) Order; sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; the Court's status as a superior court of equal status with the High Court under Article 162(2)(a) and (3) of the Constitution
Relief refused
#Leave to file reference out of time under Rule 11(4)
Delay of some fourteen months was inordinate and unexplained; the claim of ignorance of the taxation was contradicted by uncontroverted evidence of service and attendance
Stay of execution pending the intended reference
There being no reference, a stay would be a stay in a vacuum; substantial loss and promptitude not established
Remission of the bill for fresh taxation before a different taxing officer
Such relief could only issue upon a successfully prosecuted reference
Costs
The costs of this application are awarded to the Respondent, to be borne by the Applicant.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Applicant's Chamber Summons dated 7th November 2025 lacks merit and is hereby dismissed.
the prayer for leave to file a reference out of time against the decision of the Taxing Officer delivered on 29th August 2024 in ELRC Cause No. 633 of 2017 is declined, and the prayers for stay of execution and for the remission of the bill of costs for fresh taxation are, consequently, refused.
Any interim orders of stay of execution issued in this matter are hereby discharged.
The costs of this application are awarded to the Respondent.
That discretion is, however, a judicial discretion. It must be exercised judiciously, upon a proper consideration of the material placed before the Court and upon settled principle, and not whimsically, capriciously, or on the basis of sympathy alone.
among them, the explanation for the delay occupies a central place, for it is the explanation that supplies the foundation upon which the Court's indulgence is sought.
Issues in the judgment
#Paragraph numbering jumps from 58 to 60; paragraph 59 is missing
Replying affidavit dated 9th March 2026 while submissions were dated 9th March 2026 and 25th March 2026; application filed 7th November 2025 served with warrants 8th October 2025
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Slapper Shoes Industries v Joseph Okwayo Ombaisi", Case Analysis (2026). ELRC Miscellaneous Application No. E128 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2752/eng@2026-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.